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M/s Tower Vision India Pvt Ltd, M/s Indus Towers Ltd, M/s Bharti Infratel Ltd, M/s Idea Mobile Communication Ltd, M/s Spice Communications Ltd, M/s Idea Cellular Ltd, M/s Vodafone Essar South Ltd, M/s Spice Communication Ltd, M/s Bharti Airtel Ltd, M/s Vodafone Essar Digilink Ltd, M/s Bharat Sanchar Nigam Ltd, M/s Vodafone Essar Mobile Services Ltd Versus Commissioner of Central Excise (Adj) , Commissioner of Service Tax

2016 (3) TMI 165 - CESTAT NEW DELHI (LB)

Entitlement of Cenvat credit of service tax - Appellant provided telecom towers, pre-fabricated shelters and parts thereon to telecom service providers for providing passive infrastructure on lease basis and claim for Cenvat credit - Held that: for entitlement of credit on towers, shelters or parts thereof, it is therefore essential that these should be goods and should fall, either within the ambit of capital goods specified in Rule 2(a)(A)(i) of the rules, namely goods falling under Chapters 8 .....

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(in the case of active infrastructure providers, namely where the telecom companies themselves own the infrastructure used for rendition of telecom services). As these conditions are not fulfilled, appellant is not entitled to Cenvat credit. - Entitlement of Cenvat credit of duty of excise - Appellant provided telecom towers, pre-fabricated shelters and parts thereon to telecom service providers for providing passive infrastructure and supplier has paid Excise duty on on them as capital goo .....

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shelters as infrastructure used in the rendition of an output service is common to both passive and active infrastructure providers, whether of "BAS" or "BSS" in one case and "telecom service" in the other, the towers and shelters and parts are decided to be immovable property. Therefore, the appellant is not entitled to Cenvat credit. - Decided against the appellant - Service Tax Appeal Nos. 55227/2013 - INTERIM ORDER NO. 41 - Dated:- 3-3-2016 - G Raghuram, President, S K Mohanty, Member (J) A .....

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6, wherever appellants are paying service tax under the category of "business Auxiliary Services", or "Business Support Services" for providing passive infrastructure, the appellants are entitled to take Cenvat Credit on towers, pre-fabricated shelters parts thereon etc. in the light of the decision of this Tribunal in the case of GTL Infrastructure Ltd. (supra) and Reliance Infratel Ltd. (supra), or; Member (Technical) is correct in holding that post 2006, wherever appellant .....

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,59,95,327/- on shelters/parts as capital goods wherein the supplier has paid Excise duty on these items by classifying under Chapter 85 of the Central Excise Tariff Act, 1985, or; Member (Technical) is correct in holding that in Appeal No.ST/777/2009, the appellant is not entitled to take Cenvat Credit to the tune of ₹ 2,59,95,327/- on shelters/parts as capital goods wherein the supplier has paid Excise duty on these items by classifying under Chapter 85 of the Central Excise Tariff Act, .....

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cted that the matters be placed before Hon'ble President for an appropriate decision. 3. When the 21 appeals (13 arising pursuant to the difference of opinion and 8 directed to be tagged along with the 13 appeals) were listed for hearing before the Larger Bench on 3/11/2015, the Respondent/Revenue sought adjournment of the hearing. Hearing of these appeals was therefore adjourned to 8.12.2015. Composition of the Larger Bench had to be reconstituted on account of transfer of one of the Member .....

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Amresh Jain for the respondent/Revenue. 5. At the hearing of the appeals, Shri Amresh Jain, learned A.R. raised preliminary oral objections, on two counts. It is firstly contended that when a difference of opinion is recorded by a Division Bench the same must invariably be referred for resolution of the difference, to a Third Member and cannot be heard by a Larger Bench comprising three Members. Secondly it is contended that the eight appeals in which no difference of opinion was recorded canno .....

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d Member), for resolution. This fact is recorded in para 3 of the order dated 30.7.2015. The only contention that was pressed on behalf of Revenue at that hearing was regarding the necessity of tagging the eight appeals (which are not involved in the difference of opinion) for hearing by a Larger Bench. This aspect also stands considered and answered in paragraph 5 of the order dated 30.7.2015. Further the provisions of Section 129 C of the Customs Act, 1962 read with provisions of Section 35 D( .....

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para 14 of this judgment being apposite, are reproduced: 14. Consequently, the Division Bench of the High Court with respect was in error when it took the view that a Special Bench can be constituted by the President only pursuant to a judicial order and not in exercise of his administrative powers. It is of course true that in any pending matter before a Bench of two learned members, if it is felt by the learned members that a Special bench is required to be constituted, they can pass a judici .....

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y a recommendation for invoking the administrative powers of the President under Section 255(3) for constituting Special Bench. It was certainly not a reference under Section 255(3) read with Regulation 98(A). We fail to appreciate how the High Court in exercise of its power under Article 226 of the Constitution could sit in appeal or judgment over the administrative decision of the President who might have felt that the case was of all India importance and was required to be decided by a larger .....

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o the President to place listed four matters before a Special Bench. But being so apprised of the situation if the President felt that the present three matters moved by the concerned three respondents in these proceedings involved the same points and which were required to be thrashed out by a Special Bench we do not see any reason for holding that the constitution of a Special Bench by the President for deciding present three matters was an illegal or unjudicious exercise or an exercise based .....

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ial Benches can be constituted by the President both in exercise of his administrative powers under Section 255(1) read with Section 255(3) as also on the basis of a judicial order passed by any Bench of the Tribunal making reference to the President in that connection under Regulation 98(A). But it is not as if that such a reference by the members under Regulation 98(A) by passing a judicial order is the only mode and manner in which the President can be moved to constitute a Special Bench. Eve .....

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cts. But in our view present case was not of that type. There was a conflict of opinion between two Benches of the Tribunal, namely, Madras and Hyderabad Bench. It is, however, true that Madras Bench decision was by a single member while the Hyderabad Bench decision was by a Division Bench. Still it could not be said that there was no conflict of decisions between two Benches of the Tribunal. That itself constituted a rational and valid ground for the President to act in exercise of his administ .....

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LT 492 (Raj.); and the Gujarat High Court in Suo Motu vs. Gujarat High Court Advocates' Association 2015 (320) ELT 564 (Guj.). In these decisions, the observations and conclusions recorded were in the context of the facts and circumstances and in the specific context arising therein. The binding precedents, of the constitution Bench in Central Board of Dawoodi Bohra Community vs. State of Maharashtra, Union of India vs. Paras Laminates (P) Ltd 1990 (49) ELT 322 (SC); (a decision pronounced i .....

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nch on 01.09.2015. The composition was thereafter altered since one of the Members of that Bench was transferred to another Regional Bench before effective hearing could take place. 8. For the aforesaid reasons, we reject the preliminary objections. 9. As already mentioned there are two sets of appeals now considered by this Larger Bench. The first one was consequent upon interim order No. 142-154/2015 dated 28/07/2015 referring a difference of opinion between Members of the Division Bench. We t .....

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parts thereon etc. In the light of the decision of the Tribunal in the case of GTL Infrastructure Ltd. (supra) and Reliance Infratel Ltd. (supra), or; Member (Technical) is correct in holding that post 2006, wherever appellants are paying service tax under the category of "Business Auxiliary Services", or "Business Support Services" for providing passive infrastructure, the appellants are not entitled to take Cenvat credit on towers, pre-fabricated shelters parts thereon etc. .....

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re providing telecommunication service as output service. This conclusion was following the decision of Hon'ble Bombay High Court in Bharti Airtel Ltd. vs. CCE, Pune - III reported in 2014 (35) S.T.R. 865 (Bom.). However, when the appellants are providing output service of 'business auxiliary services' or 'business support services' to the telecommunication companies, such credit of duty on tower parts and pre-fabricated shelters is held to be eligible by the Member (Judicial .....

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(A) (iii), whether or not such components, spares and accessories only fall under Chapter 85. The towers and shelters are all components of BTS; (ii) Credit on towers and shelters and other materials cannot be denied on the ground of immovability. As per Rule 3 of Cenvat Credit Rules, credit is admissible on all inputs and capital goods which are received in the premises of service provider. In the present case, towers and shelters are received in the premises of service providers. Later on whe .....

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ubmission. Rule 2 (k) (ii) defines inputs as "all goods used for providing output services". There is no bar to indicate that goods which do not fall under the category of capital goods would not also qualify as inputs; (vi) Towers and shelters are to be considered as 'accessories' of capital goods. For an item to fall under the category of 'components', 'spares' and 'accessories' it must be either a component or a spare or an accessory and the classific .....

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ng the course of erection. 12. The learned Counsels representing the various appellants placed reliance on the decisions of Hon'ble High Courts and Hon'ble Supreme Court in support of their various above assertions. These are examined later in this order. 13. The learned AR appearing on behalf of Revenue submitted that:- (a) the issue relating to eligibility of towers and shelters for Cenvat credit has been clearly settled by the Hon'ble Bombay High Court in Bharti Airtel Ltd. (supra .....

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ation service. It is the immovable tower which is used for providing telecommunication service or business support service; (c) The CBEC vide Circular dated 04/1/2008 clarified that input of credit of service tax can be taken only if the output is a service liable to Service Tax or goods liable to excise duty. Since immovable property is neither service nor goods no credit can be taken. 14. The learned AR also relied on certain case laws in support of his afore-mentioned assertions. These are ex .....

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ommunication service. The first issue to address is whether the legal principles and ratio applicable to decide such credit availability will be same for both categories of providers namely those who provide telecommunication service [cellular mobile service companies] and those who provide merely infrastructure support by way of taxable service falling under 'business support service' or business auxiliary service. Schematically the position can be shown as below:- The scope of Cenvat c .....

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in the Rules and the credit availability is predicated on fulfillment of conditions mentioned therein for goods or services to fall in one of these categories. Credit taken on these goods/services can be used to discharge tax on output services. Credit on Capital Goods:- Rule 2 (a) defines 'capital goods'. It is apparent that capital goods as understood in commercial parlance or industrial circles cannot be automatically considered as capital goods for the purpose of Cenvat Credit Rules. .....

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s should fall under the specified tariff classification for eligibility to duty credit. However, there is no such restriction for the components, spares and accessories of such capital goods. 16. The central point of dispute is that the appellants are getting duty paid MS Angles, Channels etc. to the required site and getting them erected into a tower on a concrete foundation. It is the contention of the appellants that they are buying the towers in a CKD condition. It is an admitted position th .....

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icated shelters ought to be considered as "Accessories" of overall Base Transmission System (BTS) which is classified under Tariff Heading 8517. Learned Counsel during oral argument and in written submissions, elaborated on this aspect with the support of interpretative Rules for the Tariff and Section Notes. We find that the question whether this alternate argument is legally tenable has already been examined by the Hon'ble Bombay High Court in Bharti Airtel Ltd. (supra). A distin .....

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ssories" - used in sub-Clause (A) (iii) of clause (a) of Rule 2 should be understood as standing for movables only. It was held by the Larger Bench of this Tribunal in Vandana Global - 2010 (253) E.L.T. 440 (Tri. - LB) that "capital goods" defined under the Cenvat Credit Rules must be excisable goods. Hence, the Hon'ble High Court concluded that the argument of the learned Counsel with reference to the term 'accessory' cannot be accepted. We further note that the Hon&# .....

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being admittedly an immovable structure cannot be an accessory of any kind of instrument. 17. Apart from the above ratio, we find that to become an accessory of a capital goods there should identified capital goods. The claim of the appellant is that BTS is a capital goods and the towers and shelters would be it's accessory. We find that no BTS as identified capital goods emerges in the present case. Towers and shelters are erected and fixed at the desired site. The BTS electronic equipment .....

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question of Immovability of tower and its relevance:- The appellants contended that (a) set of steel items cleared as towers have suffered duty as "towers". (b) even after erection at site on a cement concrete foundation they continue to be goods or in other words do not become immovable property. 18. This aspect regarding the material status of towers and shelters have been examined in detail by the Hon'ble Bombay High Court in Bharti Airtel Ltd. (supra). On the first point it is .....

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laborate analysis of various relied upon case laws came to the categorical conclusion that towers and parts thereof and shelters are not capital goods and are also not inputs. The Hon'ble High Court observed that towers are immovable structures and ipso facto non-marketable and non-excisable. 19. On the nature of tower being "goods", learned Counsel argued that the Bombay High Court in Bharti Airtel Ltd. (supra) dealt with an admitted fact of immovability of such towers. In the pre .....

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for convenience of easy transport. Learned Counsel contended that whether a product or a thing is movable goods or a immovable property is a question of fact. It is submitted that towers in their case are not immovable property and hence continue to be goods for excise purpose. 20. We find here the Hon'ble Bombay High Court while deciding the admissibility of credit on such towers did not go by the concession or admission made by the appellants alone. The nature of tower, its fabrication an .....

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ntled in to angles and channels, nuts and bolts, substantially restoring to the original condition of the raw material. However, what is transported are "angles and channels". The towers when they are embedded are considered as immovable property. This ratio has, in our considered view, been adopted by the Hon'ble Bombay High Court in Bharti Airtel Ltd. (supra). 21. Learned Counsel relied on the Hon'ble Supreme Court's decision in CCE, Ahmedabad vs. Solid & Correct Engi .....

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tion of the machinery with a structure permanently and the civil foundation was only necessary to provide a wobble free operation of the machine, the test of permanency would fail. We have carefully perused the Apex court order in this case. The Apex court held that the hot mix plant which is specifically covered under Plant and Machinery Tariff Heading 8474 are manufactured and brought. The point decided by the Apex court was whether setting up of such plant and machinery would amount to manufa .....

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only applying the test of immovability. Tower Parts (MS Channels, Angles etc.) as "Inputs" for availing credit:- An alternate claim has been made by the appellants to allow Cenvat credit paid on structural parts/towers/ shelters treating them as inputs in terms of Rule 2 (k) (ii) which allows credit of all goods used for providing output services. It was argued that there is no bar for goods which do not fall under the category of capital goods to qualify as inputs. Reliance was placed .....

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ht of decided cases. In the present case, duty paid items are MS Angles and Channels/Shelters which are brought to the site installed/erected and further put to use for mounting/installing telecommunication antenna and other equipment. It is necessary to decide whether duty paid MS angles/shelter are used by infra companies for providing business support service to telecom companies or for providing telecom service by telecom operators. This will bring us to the next question relevant to decide .....

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uty paid MS angles, channels etc. are brought to the site, fabricated into towers on a concrete platform. Similarly, the duty paid pre-fabricated shelters are brought and fixed to the ground base firmly. On such towers, the antenna or dish are fixed and connected by cables to electronic equipment housed in the pre-fabricated shelter on the ground. It is apparent that these duty paid items are not used for providing telecommunication service. The telecommunication service is provided by using ere .....

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If the claim of the appellant is to be accepted, the credit can be even extended to duty paid MS Ingots if procured by the appellants to get the MS Angles manufactured which in turn used for erection of tower which in turn is used for providing telecom service. It is clear that such far remote linkages are not within the scope of the term "used for". 22. Learned Counsel also relied on decision of Hon'ble Supreme Court in Hyundai Unitech Electrical Transmission Ltd. reported in 201 .....

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ering the scope of terms "wind operated electricity generator, their components and parts thereof". Applying the principle in a Customs case of import of such towers, the Tribunal held the assessee eligible for exemption on such towers as parts. The Tribunal in Customs case Bharat Heavy Electricals Ltd. vs. CC, Chennai reported in 1999 (108) E.L.T. 448 (Tribunal) examined the technical literature of imported wind mill generator/tower to arrive at the decision. Here, it is the assertion .....

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lysis, the first point for difference of opinion referred to this Larger Bench relating to non-applicability of the decision of the Hon'ble Bombay High Court in Bharti Airtel to infrastructure companies to provide business support service to telecom operators can be examined. We find in the normal course the nature of output service should not have any bearing to decide credit eligibility on capital goods now under dispute. A distinction was sought to be made that the decision of Hon'ble .....

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TL Infrastructure Ltd. decision. In the said decision it was mentioned that towers/BTS Cabins were used for providing business auxiliary service and, hence, Cenvat credit cannot be denied. Further, reliance placed by the Original Authority on Explanation II and Rule 2 (k) (i) was found to be incorrect as the same dealt with a manufacturer and not a service provider. The Tribunal was referring to its earlier order in Bharti Airtel Ltd. vs. CCE, Pune reported in 2013 (29) S.T.R. 401 (Tri. - Mumbai .....

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o the Tribunal while deciding GTL Infrastructure Ltd. The tower and BTS Cabin are used for providing output service, here business auxiliary/support service but the question is, is there any duty claimed as credit paid on tower or BTS Cabins as installed at site. These items cannot be considered as inputs as they were held to be immovable property. The inputs which suffered duty like MS angles and pre-fabricated shelters, per se, were not used for providing output service. In other words there i .....

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pport service to self. The issue of service tax liability in such situation on business support service is not raised because there are no two persons as a provider or recipient of such service. In a sense such service was to the self. Considering such factual matrix, we find that no distinction could be made between the telecom operators and the infrastructure companies in deciding the eligibility of Cenvat credit on the impugned items now under consideration. 24. Further, it was contended by t .....

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ica Auto Components India P. Ltd. reported in 2015 VIL 300 (P&H - ST). In Sai Sahmita Storages (P) Ltd. (supra), the Hon'ble Andhra Pradesh High Court held that there is no dispute that the assessee used cement and TMT bar for providing storage facility without which storage and warehousing services could not have been provided. The question relating to creation of an immovable asset and the implication of Cenvat credit flow in such situation was not examined in detail in the said order. .....

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e present appeals are discussed elaborately on a similar set of facts by the Hon'ble Bombay High Court in Bharti Airtel Ltd. (supra). When there is a detailed examination and ruling on identical set of facts by the Hon'ble High Court, the same are to be followed. Further, the Hon'ble Bombay High Court reiterated their findings arrived in Bharti Airtel Ltd. (supra) in the case of Vodafone India Ltd. in their order dated 01/09/2015 in civil appeal No. 126/2015 and others. The Hon'b .....

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nst the appellant and in favour of Revenue. 26. The second point of difference of opinion referred to the Larger Bench is regarding the eligibility of the appellant to the credit on shelters and parts as capital goods. We find that our preceding analysis regarding ineligibility of credit on towers and shelters is equally applicable to the said items. The only reason for claiming the credit on shelters and parts is their classification under Chapter 85. We find that a particular classification of .....

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capital goods or as inputs and as such some supplier classifying the product under Chapter 85 by itself does not make them eligible for credit if they are otherwise not entitled for the same. Learned Counsel contended that the denial of credit as held by Hon'ble Bombay High Court is only on classification of these shelters. We find that the Hon'ble High Court categorically held that towers and PFB are in the nature of immovable goods and are non-marketable and non-excisable. Further, we .....

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of the draft opinion prepared by the Hon'ble Member (Technical) Shri B. Ravichandran, in the batch of thirteen appeals arising pursuant to a difference of opinion recorded in No. I.O./ST/142 to 144/2015-CU (DB) dated 28.07.2015, by a ld. Division Bench of the Tribunal. Eight connected appeals were directed to be tagged to those appeals, for being heard by a larger Bench, by the order dated 30.07.2015. The larger Bench was constituted by the President, CESTAT. 2. I am in respectful agreement .....

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rovided by appellants. The appellants provide telecom towers and shelters to telecom services providers, on lease basis. Whether appellants are entitled to avail Cenvat credit of excise duty paid on telecom towers, shelters and parts for remittance of service tax on the taxable services of, "Business Auxiliary Service" (BAS) or "Support Services of Business or Commerce" (BSS) as the case may be, to telecom service providers, is thus the core issue that falls for our determina .....

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cessories, credit cannot be availed. 5. In these appeals, ld. Counsel for the several appellants urge that there is a clear distinction between availment of Cenvat credit on towers, shelters and parts by active telecom service providers (as was the case in the rulings of the Bombay High Court in Bharti Airtel Limited and Vodafone India Limited) and the facts in the present batch of appeals, since appellants, herein are all passive infrastructure providers, i.e., provide the infrastructure of tow .....

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edule to the Excise Tariff Act (rule 2(a)(A)(i)]; and Components, spares and accessories of the goods specified in clause (i) (rule 2(a)(A)(iii)]. "Input" is defined to mean all goods, except light diesel oil etc. used in providing any output service (rule 2(k)(iii)]. Rule 3 of the 2004 rules authorises a provider of taxable service to take credit of specified duties paid on any input or capital goods received in the premises of the provider of the output service. 6. For entitlement of .....

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cedent for availment of Cenvat credit, on duty paid on these goods, for remittance of service tax on the output services rendered, whether the output service is "BAS" or "BSS" (in the case of passive infrastructure providers) or "Telecom Services" (in the case of active infrastructure providers, namely where the telecom companies themselves own the infrastructure used for rendition of telecom services). 7. The seminal issue is thus whether M.S. steel angles / towers .....

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ctual matrixes plant, equipment or machinery cease to be goods and transmutes to immovable property, we notice a divergence in curial interpretation. 8. In the factual context of towers and shelters owned by active infrastructure service providers, the Mumbai Bench of the Tribunal in Bharti Airtel Limited vs. CST, Pune - 2013 (20) STR 401 (Tri. Mum.) ruled that Cenvat credit could not be availed. This ruling was predicated on the position admitted by appellants therein that towers and shelters a .....

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CST, in Service tax Appeal Nos. 88497 and 85682/2014 and in Essar Telecom Infrastructure Limited and Reliance Communication Infrastructure Limited vs. CST, Mumbai-I - 2015-TIOL-1132-CESTAT-MUM. Earlier, in CCE, Mumbai-IV vs. Hutchison Max Telecom Private Limited - 2008 (224) ELT 191 (Bom.), the Hon'ble High Court concluded that towers are immovable property. 9. In State of A.P. vs. BSNL - 2012 (25) STR 321 (A.P.) the issue was regarding validity of levy of sales tax, under the provisions of .....

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o the earth or to the rooftop of a building and fastening of such huge structures was necessitated, these are excluded from the ambit of "goods "and constitute "immovable property"; and since transfer of the right to use immovable property does not fall within the scope of the VAT Act, there is no liability to tax thereunder. This decision did refer to the decision of the Supreme Court in Solid & Correct Engineering Works - (2010) 5 SCC 122, to conclude that to constitute .....

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the A.P. VAT Act. 10. Ld. Counsel for the assessees before us, strenuously contended that decisions, of the A.P. High Court in BSNL, of the Bombay High Court in Bharti Airtel Limited and in Vodafone India Limited have incorrectly appreciated and applied the ratio regarding the character of towers and shelters (as not amounting to immovable property), deducible from the judgment in Solid & Correct Engineering Works (supra). 11. In Solid & Correct Engineering Works, the decision was rende .....

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h plant or machinery need to be permanently embedded in the earth, and are thus immovable property. Whether annextiation of these goods to the earth by fixation on foundations, for ensuring stability of the plant and avoidance of vibration during operations, transform these goods into immovable property and what constitutes immovable property in the circumstances, was therefore the core issue before the Apex Court. To the extent relevant and material for our discussion, the relevant portion of t .....

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eral Clauses Act includes within the definition of the term "immovable property" things attached to the earth or permanently fastened to anything attached to the earth. The term "attached to the earth" has not been defined in the General Clauses Act, 1897. Section 3 of the Transfer of Property Act, however, gives the following meaning to the expression "attached to the earth". "(a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the ear .....

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ed. Attachment of the plant in question with the help of nuts and bolts to a foundation no more than 1½ feet deep intended to provide stability to the working of the plant and prevent vibration/wobble free operation does not qualify for being described as attached to the earth under any one of the three clauses extracted above. That is because attachment of the plant to the foundation is not comparable or synonymous to trees and shrubs rooted in earth. It is also not synonymous to imbeddi .....

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t which it rests does not fall in the third category, for an attachment to fall in that category it must be for permanent beneficial enjoyment of that to which the plant is attached. 20. It is nobody's case that the attachment of the plant to the foundation is meant for permanent beneficial enjoyment of either the foundation or the land in which the same is imbedded. 21. In English law the general rule is that what is annexed to the freehold becomes part of the reality under the maxim quidcq .....

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"The degree and nature of annexation is an important element for consideration; for where a chattel is so annexed that it cannot be removed without great damage to the land, it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land." 22. The English law attaches greater importance to the object of annexation which is determined by the circumstances of each case. One of the important considerations is founded on the interest in the land wherein .....

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as in cases where the lease itself contemplated the removal of the machinery by the tenant at the end of the tenancy. The mode of annexation has been similarly given considerable significance by the courts in this country in order to be treated as fixture. Attachment to the earth must be as defined in Section 3 of the Transfer of Property Act. For instance a hut is an immovable property, even if it is sold with the option to pull it down. A mortgage of the super structure of a house though expr .....

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ath it, as the attachment was not for more beneficial enjoyment of either the soil or concrete. Attachment in order to qualify the expression attached to the earth, must be for the beneficial attachment of that to which it is attached. Doors, windows and shutters of a house are attached to the house, which is imbedded in the earth. They are attached to the house which is imbedded in the earth for the beneficial enjoyment of the house. They have no separate existence from the house. Articles atta .....

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t;attached to the earth" within the meaning of that expression as defined in Section 3 of the Transfer of Property Act. (iii) The fixing of the plants to a foundation is meant only to give stability to the plant and keep its operation vibration free. (iv) The setting up of the plant itself is not intended to be permanent at a given place. The plant can be moved and is indeed moved after the road construction or repair project for which it is set up is completed. 25. We may, at this stage, r .....

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embedded in a concrete base the same was immovable property even when the embedding was meant only to provide a wobble free operation of the machine. Repelling that contention this Court held that just because the machine was attached to earth for a more efficient working and operation the same did not per se become immovable property. The Court observed: "5 Apart from this finding of fact made by the Tribunal, the point advanced on behalf of the appellant, that whatever is embedded in ear .....

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nd as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property." 27. In M/s. Narne Tulaman Manufacturers Pvt. Ltd. Hyderabad (1989 (1) SCC 172), this Court was examining whether the assembly of parts of machine by an asse .....

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weighbridge did not mean that the complete machine once the same was assembled by using duty paid parts was not excisable to excise duty. 28. In Triveni Engineering's case (supra), the question that fell for consideration was whether a turbo alternator comprising two components (i) steam turbine and (ii) complete alternator and fixing the same on a platform brought about a new dutiable product. The Court held that the process of fixing the same on a platform and aligning them in a specified .....

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of each case. The following passage is apposite in this regard: "There can be no doubt that if an article is an immovable property, it cannot be termed as "excisable goods" for purposes of the Act. From a combined reading of the definition of "immovable property" in Section 3 of the Transfer of Property Act, Section 3 (25) of the General Clauses Act, it is evident that in an immovable property there is neither mobility nor marketability as understood in the excise law. W .....

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ently fastening the same to anything attached to the earth. 30. Reliance was placed by Mr. Bagaria upon the decision of this Court in Quality Steel Tubes (P) Ltd. Vs. CCE, U.P. - 1995 (75) E.L.T. 17 (S.C) and Mittal Engineering Works (P) ltd. v. CCE, Meerut - 1996 (88) E.L.T. 622 (S.C.). In Quality Steel Tubes case (supra) this Court was examining whether 'the tube mill and welding head' erected and installed by the assessee for manufacture of tubes and pipes out of duty paid raw materia .....

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olved a comprehensive process of installing slitting line, tube rolling plant, welding plant, testing equipment and galvanizing etc., referred to in the decision of this Court with the setting up of a hot mix plant as in this case. As observed by this Court in Triveni Engineering & Industries case (supra), the facts and circumstances of each case shall have to be examined for determining not only the factum of fastening/attachment to the earth but also the intention behind the same. 31. In M .....

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distance places, cutters, cutter supports, tank ribs, distance plate angles, water tanks, coils, extension pipes, loose bend angles, coil supports, railing stands, intermediate platforms, drive frame railing and flats, oil trough, worm wheels, shafts, housing, stirrer arms and support channels, pipes, floats, heaters, ladders, platforms, etc. The Court noted that the mono vertical crystallisers have to be assembled, erected and attached to the earth on a foundation at the site of the sugar fact .....

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le as they were. This decision also, in our opinion, does not lend any support to the case of assessee in these appeals as we are not dealing with the case of a machine like mono vertical crystallisers which is permanently embedded in the structure of a sugar factory as was the position in the Mittal Engineering Works case (supra). The plants with which we are dealing are entirely over ground and are not assimilated in any structure. They are simply fixed to the foundation with the help of nuts .....

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same. 33. It is noteworthy that in none of the cases relied upon by the assessee referred to above was there any element of installation of the machine for a given period of time as is the position in the instant case. The machines in question were by their very nature intended to be fixed permanently to the structures which were embedded in the earth. The structures were also custom made for the fixing of such machines without which the same could not become functional. The machines thus becomi .....

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reated as moveable so as to be dutiable under the Excise Act. But cases in which there is no assimilation of the machine with the structure permanently, would stand on a different footing. In the instant case all that has been said by the assessee is that the machine is fixed by nuts and bolts to a foundation not because the intention was to permanently attach it to the earth but because a foundation was necessary to provide a wobble free operation to the machine. An attachment of this kind with .....

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ect Engineering Works there is no permanent affixation of towers and the pre-fabricated shelters to the earth, permanently. These are fixed to foundations by nuts and bolts, not with the intention to permanently attach them to the earth or for the beneficial enjoyment thereof, but only since securing these to a foundation is necessary to provide stability and wobble/vibration free operation and to ensure stability. Since affixation of towers and shelters is without the necessary intent of making .....

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results from their attachment to the site by bolting them on to concrete foundations; whether the intendment in so embedding these to the site, is for permanent and beneficial enjoyment of the earth and other relevant and cognate fact specific aspects, by applying the nuanced tests of immovability expounded in Solid & Correct Engineering Works, may perhaps lead to a different conclusion then the one emerging from the Hon'ble Bombay High Court's rulings in Bharti Airtel Limited and Vo .....

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e the province and jurisdiction of this Tribunal to analyse and record a ruling on a superior Court's analyses and elucidation of other binding precedents. The A. P. High Court's judgment in BSNL, in the context of levy of VAT, concluded that towers are immovable property, after noticing and adverting to the judgment in Solid & Correct Engineering Works. Though, the Solid & Concrete Engineering Works ruling of the Hon'ble Supreme Court was neither specifically referred to nor .....

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been incongruous with the ratio of the Apex Court's decision in Solid & Correct Engineering Works, it is clearly beyond the province of this Tribunal to embark upon such an exercise, on any grounds, including the per-incuriam principle. 15. On the above analyses, we conclude that the Hon'ble Bombay High Court judgments in Bharti Airtel Limited and Vodafone India Limited, which are directly on the issue of the character of towers and shelters and parts, and held to be immovable prope .....

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